Probate is a legal process during which a court determines the heirs, value, debts, and distribution of a deceased person’s estate. In a probate matter, the court appoints and supervises an executor or administrator to marshal the assets, pay the debts and liabilities, and distribute the remaining assets to the beneficiaries of the decedent. Typically, a probate is necessary when the assets owned by a decedent outside of a trust are valued at $166,250 or more, so if you own real property in California, the San Luis Obispo probate attorneys from Toews Law Group, Inc. strongly recommend that you create, and properly fund, a living trust for the purpose of avoiding probate.
When is Probate necessary?
As of January 1, 2020, a probate is required if an individual died owning assets with a fair market value in excess of $166,250 or real property in excess of $55,425. These threshold amounts are calculated based on the gross fair market value, and do not take into account any debt on the property.
For example, let’s assume the decedent recently purchased a home for $600,000. The decedent paid $100,000 as a down payment and obtained a mortgage for the remaining $500,000. If the decedent dies shortly after purchasing the home, the decedent will have $100,000 in equity, far below the threshold for a probate proceeding. But, because the Decedent’s home is valued at the net fair market value of $600,000 the decedent’s estate will require probate.
If you own real property in your individual name, then your estate will most likely be subject to probate.
How long does probate take?
In California, Probate typically takes between 9 to 18 months, although it can stretch much longer if a problem arises. A seemingly simple matter of getting access to a deceased parent’s bank account might drag on for over a year.
What does probate cost?
Probate fees are determined by a fee schedule set forth in California Probate Code § 10810. These fees are calculated based on the fair market value of the estate and are paid to both the personal representative and his or her attorney. The statutory fee schedule is as follows:
- Four percent on the first one hundred thousand dollars ($100,000).
- Three percent on the next one hundred thousand dollars ($100,000).
- Two percent on the next eight hundred thousand dollars ($800,000).
- One percent on the next nine million dollars ($9,000,000).
- One-half of 1% (.50) on the next fifteen million dollars ($15,000,000).
- For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount will be determined by the court.
By way of example, let’s assume your parents bought the family home in the 1970s for $50,000. The house is currently worth $900,000 with a mortgage (refinanced) of 500,000. They also have a savings account with $100,000. . If your parents die without a trust, their estate will be subject to probate. The estate will be valued at $1,000,000, which will generate statutory fees totaling $46,000 ($23,000 to each the personal representative and the attorney).
Had your parents created a trust, and funded the trust with the family home, they could have avoided probate and the accompanying fees.
How does probate work?
Probate is started when a personal representative (usually a family member or the executor named in the will), files a petition with the court in the county where the decedent resided seeking to be appointed as the Executor or Administrator and requests that the court issue Letters Testamentary. California law also requires that the decedent’s original Will be filed with the court clerk. The court will then set a hearing to determine whether the petitioning party will be appointed. The Petitioning personal representative must give notice of the hearing to all interested persons. The interested persons then have an opportunity to object to the appointment of the personal representative and/or the terms of the Will.
Once an executor or administrator is appointed, the court oversees the personal representative as assets are collected, creditors are paid, and assets are distributed to heirs and beneficiaries. The court resolves any conflicts or contests to the actions by the personal representative or the distribution of the estate. The court also sets timelines for certain tasks to be completed and makes the final determination to distribute assets to heirs.
Unhappy heirs can also complicate the process making probate take longer to settle and resulting in the court deciding which heirs get which assets.
The San Luis Obispo probate attorneys at Toews Law Group are experienced in representing personal representatives through probate and addressing the myriad of issues that can arise during the probate process. If you need representation as a personal representative or have questions regarding the necessity of probate, call Toews Law Group today.
How to legally avoid probate
A simple way to avoid probate and ensure your assets are distributed per your wishes is to create, and properly fund a revocable living trust. Despite some common misconceptions, trusts are not reserved for wealthy people. Anyone who owns real property in California and wants to be sure their assets are distributed according to their wishes will benefit from creating and funding a living revocable trust.
It is important to know the options and the San Luis Obispo probate attorneys at Toews Law Group, Inc. can advise you on the best strategy to protect your legacy.
Toews Law Group, Inc.
1212 Marsh Street, Suite 3
San Luis Obispo, CA 93401
This information has been prepared by Toews Law Group, Inc. for informational purposes only and is not legal advice. The transmission of this information is not intended to create an attorney-client relationship. Contacting us does not create an attorney-client relationship. Consult an attorney for advice regarding your individual situation.